CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE EXCEPTIONS OF RIGHT TO APPEAL IN CRIMINAL MATTERS … The ECHR has applied this exception to a conviction imposed by a court of second and final instance following a first instance acquittal, notwithstanding the argument that the exception was inapplicable as the second instance was “ competent to examine only points of law and alleged procedural errors ”. 58 However, this exception has not been strictly limited to convictions replacing acquittals. The ECtHR has clarified that it also covers the appellate aggravation of a lower conviction following a fresh hearing on appeal. 59 Similarly, it has also invoked this exception in relation to an appellate conviction rendered in absentia after a first instance acquittal had been pronounced in absentia. 60 However, this exception has not been strictly limited to convictions replacing acquittals. The ECtHR has clarified that it also covers the appellate aggravation of a lower conviction following a fresh hearing on appeal. 61 Under Section 259(5)(a) of the Czech Code of Criminal Procedure, the court of appeal cannot itself find the accused person guilty of the offence for which they were acquitted by the contested judgment. This is an exception to the generally applicable and determinative principle of appeal. The Court of Appeal is therefore left with no option but to cancel the judgment under appeal and to refer the case back to the court of first instance for a new hearing and decision. This may result in “a judicial ping-pong”, thereby prolonging the proceedings, and the case may end in the ultimate result that the court of appeal decides, pursuant to Section 262 of the Code of Criminal Procedure (see above), that the case should be heard by a different panel of judges (another single judge) or that, for important reasons, it should be decided by another court of the same type and instance. 62 In both the cases, however, this is an interference with the right to a lawful judge. 63 The ECtHR has already held that repeated remittals as a result of the poor and incomplete assessment of evidence and parties’ submissions, and procedural errors for which courts are responsible, may amount to a violation of the rights enshrined in Article 6(1) of the ECHR. 64 This also has its consequences in terms of the length of criminal proceedings. The proposed recodification of the Czech Code of Criminal Procedure brings the opposite approach. The court of appeal will be able to decide the case by itself through a judgment if a new decision can be made on the basis of the facts which were correctly established in the contested judgment or supplemented or amended on the basis of the evidence adduced in the appeal hearing. The court of appeal may depart from the findings of facts of the court of first 58 ECmHR decision in Botten v. Norway , of 17 January 1994, application no. 16206/90. 59 ECtHR decision in Šimšić v. Bosnia and Herzegovina of 10 April 2012, application no. 51552/10. 60 ECmHR decision in Partouche v. France , of 17 May 1995, application no. 25906/94. 61 ECtHR decision in Šimšić v. Bosnia and Herzegovina , of 10 April 2012, application no. 51552/10. 62 ECtHR decision in Tempel v. Czech Republic of 25 June 2020, application no. 44151/12. 63 Concerning these issues, cf. the rich case law of the Constitutional Court of the Czech Republic, cases no. III. ÚS 90/95 (of 7 December 1995), III. ÚS 711/01 (of 6 June 2002), I. ÚS 49/06 (of 20 May 2008), I. ÚS 1922/09 (of 7 September 2009), IV. ÚS 956/09 (22 October 2009), I. ÚS 109/11 (14 April 2011), II. ÚS 2317/11 (of 24 January 2012), II. ÚS 3564/12 (of 5 March 2013), II. ÚS 3780/13 (of 11 November 2004), I. ÚS 794/16 (of 21 June 2016), II. ÚS 1837/16 (13 December 2016), I. ÚS 564/17 (13 April 2017), IV. ÚS 1327/19 (of 12 May 2020), Pl. ÚS 110/20 (of 27 July 2021), IV. ÚS 839/21 (of 30 September 2021), IV. ÚS 541/21 (of 26 October 2021), IV. ÚS 2718/21 (of 8 February 2022) and I. ÚS 2085/21 (of 5 April 2022). 64 ECHR decision in Tempel v. Czech Republic , of 25 June 2020, application no. 44151/12, § 88; ECHR decision in Yaroshovets and Others v. Ukraine , of 3 December 2015, Applications nos. 74820/10, 71/11, 76/11, 83/11, and 332/11 ) §§ 169–171; ECHR decision in Yurtayev v. Ukraine of 31 Jan 2006, appliacation no. 11336/02, § 41.

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